Din v. Kerry

The Government’s denial of a visa application filed by an American citizen on behalf of her alien spouse must be “facially legitimate and bona fide” with proof that the Government official who denied the application “knows or has reason to believe” the applicant had done something to violate the applicable statute.

Fauzia Din, an American citizen, filed a visa petition for her husband, Kanishka Berask, who is an Afghanistan citizen. The petition was denied under 8 U.S.C. § 1182(a)(3)(B), which excludes aliens who are suspected of “terrorist activities.” Din appealed on the ground that the visa denial violated her constitutional right to marriage and that the Government violated the Administrative Procedure Act by refusing to give justification for the denial. She sought a writ of mandamus directing the Government to “lawfully adjudicate Berask’s visa application.” The Ninth Circuit explained that the Government’s decision must be “facially legitimate and bona fide” in order to lawfully deny the visa application. The Second Circuit follows this standard, which states that “the identification of both a properly construed statute that provides a ground of exclusion and the consular officer’s assurance that he or she ‘knows or has reason to believe’ that the visa applicant has done something fitting within the proscribed category constitutes a facially legitimate reason.” Here, the Government did not cite evidence to support its conclusion; it only listed the statute as grounds for the application denial. Since there was not a specific charge under the statute, the panel determined that the Government would be unable to prove that the consular officer “had reason to believe” that Berask had done something wrong. Additionally, some of the subsections in § 1182(a)(3)(B) provide the right of the alien to present evidence to rebut the allegation of terrorist acts. Since the Government did not specify what part of the statute it was using to deny the application, the panel held that the Government denied Din of her due process, and she therefore had standing to seek relief. REVERSED and REMANDED.